AUTO ACCIDENT ATTORNEY

Tampa, Clearwater, St. Petersburg Auto Accident Attorney

Hillsborough, Pasco, and Pinellas Counties

Whether caused by negligence, carelessness, reckless conduct, mechanical failure, dangerous products, manufacturing or design defect(s), thousands of motor vehicle accidents (autos/cars, motorcycles, trucks, or commercial vehicles) happen every day in the United States. As a result, people are injured and lives are destroyed. Families grieve. The pain, tears, shock, emotion(s), sleeplessness, and anger kill your joy as you realize that you or a loved one have become the victim of a motor vehicle accident due to the fault of someone else. While the feeling of helplessness is difficult to imagine, you have rights! If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Motor Vehicle Accident Links:

Auto Accident – Overview

After an accident (e.g., rear end collision, head on collision, side swiped, intersection collision, drunk driver, uninsured motorist, underinsured motorist, hit and run, or other type of accident), you are worried about your injuries (e.g., whiplash, neck sprain, neck strain, back sprain, back strain, herniated/slipped or protruding discs, broken bones or fractures, closed head, TMJ, lacerations, disfigurements, spinal, or other internal injuries), your vehicle, your family, how the insurance companies will respond, and, perhaps, even how the police will handle the matter. You may wonder what you can do to ensure that you and your family get all the financial and legal benefits that you are entitled to under the law. In the meantime, as you and your families struggle to manage the pain, find peace of mind, obtain needed assistance, the insurance companies initiate their investigation, and, on many occasions, attempt to settle the claim for far less than full compensation.

Importantly, insurance companies are in the business of making a profit. When your injuries are severe and the medical costs are high, the range of compensation for your losses can vary widely. Consequently, insurance companies thrive on such uncertainty and may act unreasonably by striking at those that stand in the path of their profits. In attempting to close your claim as quickly and cheaply as possible, your insurance company may not be acting generous. Rather, the insurance company may actually be attempting to limit its financial liability. Moreover, your own statement(s) may even be used against you to subsequently deny your claim. In these situations, legitimate claims are settled for far less than appropriate causing further pain, loss, and anger.

In order to persuade the injured and their families to accept far less than they are entitled, some insurance companies utilize a number of tools such as creating a false sense of exaggeration to offer less than the claim is worth, engaging in unreasonable delay, failing to conduct a full investigation, denying to honor the coverage itself, leveraging a settlement unfairly, intimidation, or employing some other type of insurer misconduct. In addition, insurance companies may provide documents that require you and your family to give up all of your legitimate rights in exchange for much less than appropriate for your injuries and loss. Before settling your motor vehicle claim for less than you are entitled to, deserve, and need, contact the Zaritsky Law Firm to help you understand your rights.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Auto Accident Injuries

Anyone involved in an accident can experience injuries to any part of the body. In fact, on many occasions, injuries that initially appear to be minor may get worse over time. Consequently, accident victims should seek medical attention without delay.

Notably, an emergency room’s primary focus is traumatic injuries that require immediate treatment. As such, the mere discharge of a patient from an emergency room is not indicative of whether an injury has been sustained in the accident. In fact, symptoms of the underlying injury may not show up for hours, days, or, at times, weeks later. In addition, the x-rays performed at the emergency room (if any) may only relate to certain body parts or fail to capture the full measure of the injury, especially since multiple types of injuries may arise from motor vehicle accidents such as: whiplash, neck sprain, neck strain, back sprain, back strain, herniated/slipped or protruding discs, broken bones or fractures, closed head, TMJ, lacerations, disfigurements, or other internal injuries. With respect to each, more extensive diagnostic testing and examination may be necessary.

Additional medical care and/or evaluations should be sought within a reasonable period of time. Otherwise, it may become more difficult to relate your injuries to the accident. Consequently, an extended delay or gap in time between the date of the accident and treatment may affect your ability to receive full compensation. By seeking timely medical treatment, you help to avoid arguments that imply your injuries were caused by something other than the automobile accident.

If you or a family member were injured in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Auto Accident - Damages

In Florida, you are entitled to compensation for pain and suffering if you have sustained a permanent injury as a result of an automobile accident. The amount of damages recoverable for pain and suffering is dependent, in part, upon the nature and scope of your injury. Pain and suffering that you have now or will experience in the future is not paid by your No-Fault, group health, or worker’s compensation carriers. As your attorney, the Zaritsky Law Firm seeks to recover such damages from the responsible party or parties.

The Zaritsky Law Firm works to prove that you were not at fault and that the other driver and/or their insurance company should pay for your medical bills, pain and suffering (past, present and future), lost wages (past, present and future), emotional trauma, loss of companionship, property loss, loss of capacity for the enjoyment of life, disfigurement, disability, physical impairment, inconvenience, and more. Our experience with personal injury claims makes us uniquely qualified to handle the multiple issues that arise in accidents that involve automobiles, motorcycles, trucks, trains, and commercial vehicles.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Auto Accident - Various Types of Fault

The injuries and losses themselves may involve different levels of severity arising from various types of fault such as:

Speeding;

Careless Driving;

Fatigue;

Faulty Repair Work;

Faulty or Defective Design Work;

Manufacturing Defect; and,

Driving While Intoxicated (“DWI”) / Driving Under the Influence of Alcohol or Drugs (“DUI”).

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Handling Your Auto Accident Case

Even a simple automobile accident can lead to a lawsuit involving multiple parties and multiple theories of liability. When considering the entire claim, each part of the total claim must be segregated and analyzed individually. The Zaritsky Law Firm will ensure that your rights and benefits are protected by exploring all case aspects, involved parties, witnesses, potential sources of recovery, and theories of liability. We protect your rights!

Unfortunately, insurance companies (auto, motor vehicle, property, home, business / commercial, and health) are in the business of making money. This means that certain insurance companies may attempt to offer you a settlement that is far below the actual value of your claim (called “lowballing”), delay payment otherwise due (called “stonewalling”), or even deny the claim altogether. At the same time, you may be facing mounting medical bills and the reality that you will be unable to work for an extended period of time. What can you do to ensure that you are properly compensated? How do you reduce your stress and protect your rights?

As your lawyer, the Zaritsky Law Group can negotiate with the responsible party and/or their insurance company concerning the auto accident and your injuries. If not resolved before filing suit, we take your case to court to help ensure that the full value of your claim is paid in a timely manner.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Preexisting Conditions

If you were already suffering from a pre-existing condition, the law still allows for recovery.; Specifically, aggravation of a pre-existing condition is compensable. Since you are entitled to seek treatment from whomever you choose, the physician or chiropractor that has already been treating you is often in a good position to determine the scope and extent of aggravation. The Zaritsky Law Group will assist you in seeking appropriate care, investigating the accident, obtaining critical evidence, and building your claim to capture the maximum compensation you deserve and need from the at-fault party or parties responsible for your injury.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Legal Responsibility for Auto Accident

In Florida, motor vehicle owners are required to obtain no-fault automobile insurance coverage. Under no-fault automobile insurance coverage, your own no-fault automobile insurance carrier has primary responsibility for your initial medical bills and/or lost wages. If you have group health insurance, Medicaid, Medicare, or an HMO, your group insurer may also make payments toward your medical expenses. In any event, the paperwork can become extensive, and, at times, the insurers disagree over which carrier is responsible for which bill. For example, the worker's compensation carrier may pay an expense, assert a lien, and seek satisfaction from the PIP carrier since PIP is primary. Significantly, although you may have group health insurance, no-fault coverage, an entitlement to worker's compensation, or other benefits, you still have the right to pursue a claim against the negligent party or parties once the damage or injury threshold has been crossed.

Importantly, if you or a family member were involved in a motor vehicle accident due to the fault of another, contact the Zaritsky Law Firm as soon as possible. We may be able to assist in gathering critical evidence (e.g., tire tracks, skid marks, eyewitness testimony) before it is lost to strengthen the value of your claim.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Post Accident Checklist

If you or a family member were involved in a motor vehicle accident due to the fault of another, we advise you to seek medical attention immediately.

Maintain a diary to discuss with counsel and assist with anticipated litigation.

Maintain a diary to discuss with counsel and assist with anticipated litigation.

Florida Personal Injury Protection Coverage ("PIP")

In Florida, the minimum mandatory insurance is Personal Injury Protection Coverage (“PIP”). Personal Injury Protection Coverage (also known as “PIP coverage” or “PIP”) is statutory and provides coverage without regard to fault. Specifically, PIP pays eighty percent (80%) of all reasonable, related, and necessary medical, chiropractic, diagnostic, rehabilitation, and medical transportation expenses (subject to a fee schedule). As applied, unless modified coverage was selected to secure a premium reduction (e.g., no lost wage coverage), PIP also provides for sixty percent (60%) of lost wages (past and future) paid on a bi-weekly basis (i.e., not 30 days), up to one hundred percent (100%) for household services (e.g., housekeeper), and, when applicable, up to $5,000.00 in death benefits. In addition, the injured claimant may apportion the PIP benefits to maximize available coverage. In other words, if the injured claimant has health insurance or other coverage that will satisfy part or all of the medical expenses, then they may direct that the PIP insurer prioritize the payment of lost wages over medical expenses to maximize the total insurance benefits paid. The available policy benefits are paid as the loss accrues. It should also be noted that the total available PIP benefits may only consider benefits that are properly payable. For example, if the PIP insurer makes payment for charges that are uncompensable (e.g. late charges), then those payments are considered gratuitous and not applied to the total available PIP benefits.

The total available PIP policy benefits are $10,000.00, and PIP is primary to other available insurance, which means that the injured person must look to their own PIP coverage before turning to an at-fault party for recovery in tort. Accordingly, if there is a permanent injury and the medical, wage and out-of-pocket expenses exceed the available no-fault coverage (i.e., $10,000.00), then the injured person may seek recovery in tort from the at-fault party or parties. The initial limitation on the injured party’s right to sue the at-fault party or parties in tort was intended to serve as a means of providing the injured party with necessary assistance in a more expeditious manner. Stated differently, in exchange for obtaining an initial $10,000.00 in benefits more quickly, Florida no-fault law limits the injured party’s right to sue the at-fault party in accidents that are relatively minor in nature. In those cases, medical bills and lost income are paid by the injured party’s own insurance company without regard to fault. However, if the injury is permanent and the $10,000.00 threshold is met, the injured party may seek additional compensation from the at-fault party or parties.

In sum, injured claimants involved in relatively minor accidents are assured a swift and virtually automatic payment of their medical bills and lost income by their own insurer. To this end, the following injured claimants are entitled to PIP benefits: (1) named insured(s); (2) relatives residing in the same household as the named insured(s); (3) permissive users of the insured motor vehicle; (4) passengers in the insured motor vehicle; and, (5) pedestrians struck by the insured motor vehicle.

People often ask who is subject to Florida’s minimum security requirements. Although there are certain exceptions, if a person has used a vehicle on the public roads in Florida for more than 90 days during the preceding 365 days, then that person must have purchased a minimum of $10,000.00 in personal injury protection coverage and $10,000.00 in property damage liability coverage. Moreover, if injured by a driver that has had their license suspended, received a DUI (with license revocation), been involved in an accident with injuries that was their fault, is a habitual traffic offender, or had an accident without the required PIP coverage at the time, then they probably were required to maintain SR-22 insurance coverage in order to have the privilege to drive. Simply put, SR-22 insurance is non-cancelable insurance.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your right.

Medical Payments Coverage

Medical Payments Coverage ("Med–Pay") is an optional coverage that is separate from PIP. Like PIP, Med-Pay applies without regard to liability or fault. Unlike PIP, Med-Pay is contractual and not statutory. It provides for the insured’s medical expenses, covered family members, and others occupying the insured’s automobile. In general, Med-pay supplements PIP. Typically, Med-pay covers the 20% co-payment that is not covered by PIP. Moreover, under certain policies, Med-pay may also cover the PIP deductible. Since Med-pay customarily issues payment at one hundred percent (100%) of its usual $5,000.00 coverage amount until exhausting its limit, the total available no-fault coverage is effectively increased to $15,000.00. In sum, once the PIP limit has been reached, Med-Pay continues to issue payment at 100% until its limit is exhausted.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Crime Victim Compensation

PIP may not cover all of the reasonable, related, and necessary medical expenses incurred in an accident. As such, the 20% co-payment and usual $0.00 to $1,000.00 deductible must initially be satisfied by the injured claimant’s own funds or other available insurance. Moreover, the at-fault party or parties may be uninsured, underinsured, or have insufficient assets to look to for relief. Since crime victims should not be burdened with these out-of-pocket expenses, the Florida legislature passed the “Crime Victim Compensation Act”, which provides financial assistance to those injured by certain types of felonies. As applied, eligibility under the Act provides for full PIP coverage, without the need for co-payments or a deductible. In other words, PIP is paid at one hundred percent (100%) up to $10,000.00. Unfortunately, obtaining an eligibility certificate or payment under the Crime Victim Compensation Program may require a serious battle.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Florida Property Damage Coverage

When an owner or operator of a motor vehicle has been involved in a crash, the law requires proof of their ability to pay damages of $10,000/$20,000 for bodily injury and $10,000 for property damage.

Personal Injury Protection Coverage and Property Damage Coverage are both required in Florida. Property Damage Coverage (“PD coverage” or “PD”) provides coverage for damage to the vehicles and property of third parties. Thus, the coverage itself extends to damaged vehicles as well as other property such as light poles, fences, or houses. PD coverage does not provide coverage to the insured. Rather, comprehensive collision coverage provides separate coverage for damage to the vehicle and property of the insured, whether the fault of the insured or an uninsured motorist. Notably, comprehensive coverage may also cover damage to the insured’s vehicle for theft, fire, or storm damage. In any event, like PIP, the minimum PD coverage in Florida is $10,000.00. Varying deductibles may apply. As to drivers with an accident history, they may also be required to purchase bodily injury or liability coverage (“Bodily Injury Coverage” or “BI"). The minimum BI coverage of $10,000.00 per claimant/$20,000.00 per accident (10/20 coverage) may be applicable. Some policies provide coverage for combined property damage liability and bodily injury liability of at least $30,000.00 with respect to any one accident involving the use of a motor vehicle.

Many PD policies also provide coverage for rental car reimbursement. To this end, the at-fault driver may have coverage for the third party victim's loss of use of their vehicle. These policies generally limit the rental allowance to a specified number of days and maximum dollar amount.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Property Damage Deductibles

Since property damage coverage provides coverage for damage to the vehicles and property of third parties, there should be no deductible. As such, the claim may be submitted against the at-fault driver’s insurance company. Alternatively, if desired, third party victims may submit their claim through their own comprehensive collision coverage. If submitted through one’s own comprehensive collision coverage, a deductible may apply depending on the coverage elected at policy inception. Typically, claims submitted through one’s own comprehensive collision coverage are processed more quickly. In turn, the victim’s comprehensive collision insurance company may then go after the at-fault party’s insurance company for the damages paid. Thus, in time, your insurance company may recover the deductible from the at-fault party and/or their insurer and reimburse you.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Bodily Injury Coverage

At times, the person that caused the accident (i.e., the “at-fault driver” or “tortfeasor”) does have bodily injury or liability coverage (“BI”). As such, the at-fault driver’s BI insurer is obligated to pay for the bodily injury damage(s) caused by its insured up to the available policy limits. For example, in the $10,000.00 per claimant/$20,000.00 per accident (“10/20 coverage”) policy, the available limit of BI liability coverage is $10,000.00 per injured claimant from the at-fault party. Moreover, the $20,000.00 per accident represents the total amount of BI coverage available for all claimants injured in the accident.

Drivers with an accident history may be required to also purchase bodily injury or liability coverage (“BI”). In those cases, the minimum BI coverage of $10,000.00 per claimant/$20,000.00 per accident (“10/20 coverage”) may be applicable. Absent prior accident history, BI liability coverage is optional and provides protection for indemnification and defense. Whether caused by the insured’s negligence, covered family members, or a permissive user of the insured’s vehicle, BI liability coverage provides indemnification for injuries caused to a third party or parties . Moreover, BI coverage may also apply in certain circumstances to accidents that occur when the insured or a covered family member is operating the vehicle of another.

In the absence of BI coverage, Florida may require the at-fault party (“tortfeasor”) to carry non-cancelable insurance for a minimum amount and minimum number of years. Otherwise, the tortfeasor’s driving privileges may be revoked, fines imposed, and tags seized. Importantly, the tortfeasor’s insurer must be notified of any claim or action in a timely manner. Otherwise, the tortfeasor’s insurer may attempt to claim prejudice and deny its duty to defend or indemnify. Notably, the tortfeasor’s insurer may be the primary method of obtaining full compensation for your injuries, especially if its insured has insufficient assets to satisfy the claim.

Since liability coverage is not required in Florida prior to the first accident, and, if purchased, may be in a minimal amount, uninsured/underinsured motorist coverage (UM) constitutes an important aspect of Florida’s motor vehicle protection insurance.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Uninsured Motorist and Underinsured Motorist Coverage (“UM” or “UIM”) is optional coverage. Like bodily injury coverage (“BI”), UM coverage insures against permanent injuries caused by the negligent operation of a motor vehicle. However, unlike BI, UM provides coverage to the insured, covered family members, and others occupying the insured automobile. Thus, UM coverage is not directed toward insuring losses to third parties as a result of the insured’s own negligence. Rather, UM coverage is directed toward providing benefits to its own insured(s) when injured in an accident with uninsured and/or underinsured motorists. Of course, the UM insurance company essentially becomes the insurance company for the at-fault party to the extent of the UM policy limits.

In Florida, the insurer must offer its insured(s) Uninsured Motorist and Underinsured Motorist Coverage (“UM” or “UIM”) whenever its policyholder(s) purchase(s) Bodily Injury or Liability Coverage (“BI”). In fact, the insurer must offer UM/UIM in an amount equal to the level of BI coverage purchased. Alternatively, the insurer may provide a lesser amount of UM/UIM coverage provided its policyholder elects the decreased coverage (i.e., in exchange for reduced premiums). Whether the policyholder elects a lesser amount of UM/UIM coverage and/or rejects UM/UIM coverage entirely, the insurer must obtain a knowing and signed rejection in writing.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

If the responsible party or parties do not have liability insurance (“BI”) or have insufficient liability insurance, the injured claimant(s) may be entitled to obtain compensation through an uninsured and/or underinsured motorist claim (“UM/UIM”). Stated differently, if an adverse motorist has bodily injury limits that are less than the limits of the insured’s own underinsured motorist coverage, then the adverse motorist’s vehicle is underinsured. Similarly, if the adverse motorist does not have any bodily injury coverage (“BI”), then the adverse motorist’s vehicle is uninsured. Illustratively, if an insured is involved in a collision with an at-fault driver that only has $10,000.00 in bodily injury coverage, and the insured has sustained $100,000.00 in bodily injury damages, then the insured may be able to collect the $10,000.00 from the at-fault driver’s insurance company and make another claim against their own policy for the difference based on underinsured motorist coverage. Thus, assuming the insured had $100,000.00 in UM/UIM coverage (“UM”), an additional $90,000.00 in UM benefits may be available to the insured.

Typically, UM coverage is not available until applicable BI policies are exhausted. However, if multiple claimants exhaust the adverse motorist’s BI limits, then the insured’s claimed difference may be between their own UM/UIM limits and what was actually recovered from the adverse motorist’s coverage. In addition, although the adverse motorist BI limits may equal (or even exceed) the insured’s own UM/UIM coverage, the insured may still be entitled to recover under their own UM/UIM policy in these types of cases. So, in the example above, if the insured only recovered $5,000.00 of the $10,000.00 in BI from the adverse motorist due to settlements involving other claimants, the insured may now seek an additional $95,000.00 under its own policy in UM benefits. The maximum liability for UM/UIM insurance company will not exceed the insured’s UM/UIM coverage limit, less amounts previously paid by the responsible at-fault party or parties. Simply put, the insured can recover the difference between their own UM/UIM limits and the actual amount received from the adverse motorist(s). However, UM/UIM coverage is over and above, not duplicative, of other available benefits. Since UM/UIM coverage was created for the benefit of injured persons and not insurance companies, Florida’s public policy seeks to protect its citizens by affording the broadest possible coverage.

For example, if a passenger was injured in a motor vehicle accident and exhausted the liability coverage (BI) of the driver’s policy in which (s)he was riding, the injured passenger may still be able to collect uninsured motorist coverage (UM) under that driver’s policy if their damages remained unsatisfied and the adverse motorist was uninsured and jointly at-fault. In that case, the UM benefits would be in addition to and not duplicative of the BI benefits. In contrast, an injured passenger may not treat the driver’s policy as both an insured and uninsured for the purpose of stacking BI and UM coverage under the same policy. Consequently, a passenger in a single car accident may not seek BI limits and then demand UM benefits under the same driver’s policy. In a single car accident, the injured passenger is not attempting to collect UM benefits based on a second uninsured motorist’s negligence, which is a critical difference.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

In some accidents, the negligent driver has bodily injury coverage (BI). However, the BI coverage may not be enough to cover your personal injury claim. Moreover, underinsured motorist claims may also arise when several people are injured in the same accident, and the negligent driver’s BI limits are insufficient to fully compensate each of the injured parties. As your attorney, the Zaritsky Law Firm will investigate whether uninsured and/or underinsured motorist coverage is available to you. If not available or available but in a lesser amount than your bodily injury coverage (BI), we will determine if a valid offer, rejection or selection of a lesser amount took place. In the event your insurance is unable to prove that a valid offer, rejection or lesser amount selected took place, then an uninsured and/or underinsured motorist claim may be available to you even if you failed to purchase this type of insurance coverage. Typically, if available, you are automatically provided coverage in the same amount as your bodily injury coverage. In addition to bodily injury coverage, you may also be entitled to coverage for emotional and psychological injuries.

In the event an employee is injured during the course and scope of their employment, the injured employee may be entitled to higher UM/UIM limits under their employer’s automobile policy. So if an employer has a $1,000,000.00 in UM/UIM coverage and the employee has $50,000.00 in UM/UIM coverage under their personal policy, the higher UM/UIM limits may be available to the employee through their employer’s policy. Since insurance companies are in the business of making a profit, the employer’s insurance company may claim the UM/UIM coverage is personal and state the injured employee is only entitled to coverage under their own personal policy. Whether you are entitled to pursue a claim for uninsured or underinsured motorist benefits under your own or someone else’s policy, the Zaritsky Law Firm will help protect your rights.

Uninsured motorist claims may also arise if you were injured by a hit and run driver (i.e., phantom vehicle) or a driver whose insurance company is now denying coverage (e.g., unlisted driver, failure to pay premium, policy cancellation, or some other reason). Under certain circumstances, you may be entitled to pursue a claim for uninsured motorist benefits if you were a passenger in or driver of someone else’s vehicle.

If you or a family member were involved in a motor vehicle accident due to the fault of another, the Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Handling Uninsured and Underinsured Motorist Claims

Even if both bodily injury coverage (“BI”) or uninsured/underinsured motorist coverage (“UM”) are available, the injured claimant typically starts with their personal injury protection coverage (“PIP”). In other words, PIP coverage is primary. If the PIP and UM carriers are the same, they will usually keep their files separate. As such, the UM adjuster will not examine the PIP file without permission from the injured claimant. In any event, once PIP is exhausted, the threshold crossed, and permanent injury established, the injured claimant may turn to UM for medical expenses, lost wages, certain out of pocket expenses, and for pain and suffering incurred. Of course, if the at-fault party or parties have liability coverage (BI), then the injured claimant should first proceed against the at-fault party or parties once the underlying PIP limits have been exhausted. Thereafter, the injured claimant may seek UM coverage for any covered losses remaining after other coverage avenues have been depleted. If either of the BI or UM carriers fail to timely settle a policy limits demand and the injured claimant proceeds to verdict and obtains a judgment in excess of the policy limits, then the injured claimant may also be able to recover those damages in excess of the limits of the policy.

In sum, the adverse motorist must be at-fault, in whole or in part, for the accident. Consequently, the insured and the insured’s insurance company have an inherent conflict of interest. Since the insured’s UM/UIM insurance company is placed into the position of the adverse motorist, the insured’s own insurance company is “defending” the adverse motorist against its insured, who is seeking UM/UIM benefits under their own policy. Even though premiums were paid for the UM/UIM policy, many insurance companies utilize defenses on behalf of the adverse motorist in an attempt to minimize payments required or otherwise due to their own insured.

If the UM/UIM insurance company fails to settle with their insured, the insured is compelled to obtain a determination of liability against the adverse motorist. If a determination of liability is obtained against the adverse motorist and damages exceed policy limits, then a suit may be filed against the UM/UIM insurance company for failing to settle in good faith with its insured. By considering the interest of itself over its insured, the insurance company may have acted in bad faith, engaged in unfair trade practices, or even breached the implied-in-law covenant of good faith and fair dealing. If so, the insurance company may be obligated to pay its insured for damages in excess of policy limits. The insurance company’s duty to act in good faith begins when the claim arises and not when a judgment or award it obtained by the insured. Importantly, if the insurance company refuses to pay amounts owed that are undisputed, you should contact counsel immediately.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

First Party v. Third Party Disputes

1. Available Causes of Action – Claim Disputes

In general, the claimant's standing in relation to the insurer determines the available courses of action with respect to claims disputes. On a case-by-case basis, the Zaritsky Law Firm will examine who did what to whom, for what purpose, in what context, and their relations between each other (and their insurers) when assessing the nature, scope, and extent of the loss.

2. First Party Disputes

In first party disputes, the claimant or beneficiary seeks damages against its own insurance company. When seeking these damages, the first party claimant or beneficiary levies a state or federal action grounded in contract. The claimant or beneficiary is named the plaintiff and their insurance company is named the defendant. If the first party claimant or beneficiary prevails, the court may award an entitlement to attorney’s fees under Florida Statutes Section 627.428. In contrast, third party liability disputes are handled differently.

3. Third Party Liability Disputes

In third party liability cases, the insurer has a duty to indemnify and defend. Whether caused by an insured’s negligence, covered family members, or a permissive user of the insured’s vehicle, the bodily injury liability insurer provides indemnification coverage for injuries caused to a third party or parties. These third party liability disputes generally involve alleged negligence. In these negligence actions, insurance coverage may not be referenced in the action. If referenced, a “mistrial” may occur. Consequently, third party actions appear to only involve disputes between the injured party (or parties) and the at-fault party (or parties). Of course, the at-fault party’s insurer is paying for the defense and responsible for the loss up to the limits of the policy. At times, the at-fault party’s insurer may be responsible for damages in excess of the policy limits provided certain conditions are met.

In third party liability cases, there is no direct contractual relationship between the injured claimant and at-fault party (“tortfeasor”). Therefore, if a pre-suit settlement between the claimant and tortfeasor's insurer is not reached, the claimant may be compelled to bring suit directly against the tortfeasor. Since the tortfeasor’s insurer is required to defend and indemnify its insured, the insurer may have an exposure beyond its policy limits. The insurer’s exposure originates from its ability to control the defense itself. For example, if the tortfeasor’s insurer wrongfully refuses to settle a valid $100,000.00 claim within its $10,000.00 policy limits, then the insurer may become liable for its bad faith conduct as a result of exposing its insured to additional $90,000.00 in liability. Consequently, the tortfeasor’s insurer could be held responsible for the full amount of the judgment, which, in the preceding example, is $90,000.00 over the policy limits.

In uninsured/underinsured motorist coverage (“UM”) disputes, the injured claimant is a first party and may be an insured or omnibus insured (i.e., beneficiary entitled to benefits under the insured's policy). However, the nature and process of resolving disputes in the UM context is different from other first party cases. If the dispute is over damages (i.e., the amount or value of the insured’s bodily injury claim) and fault, then it is subject to arbitration. In contrast, if the dispute is over coverage, the dispute may be resolved in state or federal court, whether by breach of contract or declaratory relief. Notably, in UM disputes, if the arbitrator issues an award in excess of policy limits, the insurance company may become obligated to pay the full amount of the arbitration award where the insured made a policy limit demand based on reasonably clear liability that was not timely accepted before arbitration.

5. Property Damage Disputes

In property damage disputes, the claim typically centers on how much the property will cost to repair or replace. Consequently, an appraisal process may be used to resolve the claim. In appraisal, each side selects their own appraiser. Thereafter, if an agreement has not been reached, the two appraisers may then select a third neutral appraiser. Collectively, the appraisers will resolve the property damage dispute. If necessary, a lawsuit can be filed to compel an insurer to participate in the statutory or contractual appraisal process.

6. Personal Injury Protection (“PIP”) Disputes

In PIP, the persons covered or their assignees may file suit to obtain benefits due. However, before filing suit, a pre-suit demand letter must be sent that is in compliance with Florida Statutes section 627.736(10). The pre-suit letter provides the insurer notice of the claim and intent to litigate. Once notified, the insurer has thirty (30) days to resolve the claim. If not resolved, suit may be filed. In 2003, mandatory binding arbitration was eliminated in the PIP context. However, non-binding arbitration programs were subsequently implemented in many of the courts.

In nonbinding arbitration, each side presents its case in an abridged manner. The process is more informal (e.g., proffer of documentation with no live witnesses). Typically, each side pays for half of the arbitration costs, and a written decision is rendered by the arbitrator. Once rendered, either party may file a petition for trial de novo with the court within twenty (20) days to set aside the arbitration award in its entirety. If timely filed, the lawsuit will resume as before. Once the case is concluded, the arbitrator’s decision is unsealed. If the party that filed the petition for trial de novo fails to do better than the arbitrator’s decision, then that party may become responsible for the attorney's fees, costs, and expenses of the other side, which could include the arbitration itself. Absent a petition for trial de novo or if it is untimely filed, the court will unseal the arbitrator's decision and enter the judgment. Unlike mandatory arbitration, non-binding arbitration may cover any issue, including disputes over coverage.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Stacked and Unstacked Coverage

Since many households have more than one vehicle, multiple vehicles may be insured. To this end, certain households may seek to combine and increase their available coverage in the event of an accident. These households combine or “stack” multiple vehicle coverages by choosing the option to “stack” their coverage. Once selected, these households pay an increased premium. In exchange, the coverage limits for each automobile in the policy are combined to maximize the available coverage in the event of loss. For example, if you and your spouse own and insure two automobiles under the same policy, then you can select the option to stack your coverage. By choosing to stack your coverage, you will be paying an increased premium. If each car is insured for $10,000.00 per claimant/$20,000.00 per accident (“10/20 coverage”), then you and your wife’s available coverage will stack and combine to total $20,000.00 per claimant/$40,000.00 per accident.

Uninsured Motorist Coverage (UM) is offered stacked and unstacked. However, the insured must select non-stacked to receive a premium discount. Otherwise, UM presumes the coverage is stacked.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Interpreting Insurance Contracts

In general, insurance policies are given a reasonable and practical interpretation. Unless otherwise specified, policy terms are given their plain and ordinary meaning. As such, the interpretation should not be forced, strained, or unrealistic. Ambiguities or inconsistencies in an insurance policy are construed against the insurance company and in favor of coverage. In the event an insurance company intended to exclude coverage, it must use clear and unambiguous terms. After all, the insurance company drafted the policy. When determining whether such an ambiguity or inconsistency exists, the insurance policy is considered in its entirety to assess the intent of the parties. Ultimately, the courts will determine as a matter of law whether there is an ambiguity in the policy. To this end, the court will determine if the policy terms are subject to two or more interpretations. If so, the courts will find coverage in favor of the policyholder.

Choice of Law

Insurance policies are not always issued in Florida. Thus, a question may arise as to which state law controls if the accident happened in Florida and the policy was issued in another state. In determining whether Florida law controls, there are a number of factors considered by the courts such as: (1) where the injury or conduct causing the injury occurred; (2) the parties domicile, residence, nationality, and place of business or incorporation; and, (3) the place where the relationship, if any, between the parties is centered. In addition, on certain occasions, a public policy exception may apply to protect Florida residents.

Comparative Fault

In Florida, when more than one party contributed to the accident, the percentage of fault is compared (“comparative negligence”). If you were injured due to the fault of another, then you have a right to compensation up to their percentage of fault. As such, the at-fault party’s liability is determined by comparing their carelessness to the carelessness, if any, of yourself as the injured claimant. Stated differently, your own negligence, if any, decreases your recovery to the extent of your own percentage of fault. Accordingly, the at-fault party’s liability for the accident is determined by comparing their carelessness to the carelessness, if any, of the injured claimant to derive a percentage that must be paid for the resulting damages.

The Zaritsky Law Firm works to prove that you were not at fault and that the other driver, their insurance company, and other responsible parties should pay for your loss and injuries. Our experience with personal injury claims makes us uniquely qualified to handle the multiple issues that arise in auto accidents as well as accidents that involve commercial trucks, motorcycles, trains, and other types of vehicles.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Will the Claim Be Resolved in Settlement or Trial?

In each personal injury case, the Zaritsky Law Firm seeks to maximize your compensation by measuring the full extent of your injuries and loss. We interview witnesses, investigate fault, uncover responsible parties, obtain and examine pertinent claim documents (e.g., police report), retain and consult experts (investigative/medical/surgical/engineer/economic/life-care/life-planning/accident-reconstruction/rehabilitative/other), analyze medical records/reports, assess short and long term impact (financial/emotional/physical), identify lost income and expenses, and evaluate many other variables before deriving a reasonable settlement value. However, if the at-fault party (or parties) and/or their insurance company (or companies) fail to accept a reasonable settlement offer(s), a trial by judge or jury may be necessary to protect your rights.

The Zaritsky Law Firm has the knowledge and experience to aggressively represent you and protect your rights.

Lawsuits – Overview

1. Complaint & Summons

In the event settlement is not reached with the at-fault party, parties, and/or their insurance companies, a lawsuit must be filed with the court to protect your rights. Specifically, the Zaritsky Law Firm will prepare and file a complaint setting forth each of your legal theories for recovery against the at-fault party and/or parties. You are the “plaintiff” and the at-fault party or parties is/are the defendant(s). Along with the complaint, a summons is prepared and conformed to notify the opposing party defendant(s) of your claim and the time for their required response.

2. Responses to Complaint

Once served, the defendant(s) must respond within the designated time, which is typically twenty (20) days from their receipt of the summons and complaint (i.e., service of process). When responding, the defendant(s) may move to dismiss the complaint (e.g., lack of jurisdiction over person or subject matter, insufficiency of process or service of process, failure to state a claim upon which relief can be granted, failure to join an indispensable party, venue, or other) or file an answer to the complaint. If the defendant(s) answer(s) the complaint, they must admit, deny, or state lack of knowledge to each of the allegations. Further, the defendant(s) may raise affirmative defenses, file a counter-claim, cross-claim against another party defendant or defendants, or even file a third-party claim against another party (i.e., not a named defendant in the complaint).

If the defendant(s) fail(s) to respond within the designated time, a default may be entered by the court. If the defendant(s) assert(s) a counter-claim, cross-claim, or third party claim, then the party or parties against whom such claim(s) was/were filed must respond within another designated period of time. Again, like before, the party or parties receiving such claim(s) may move to dismiss or file an answer.

3. Discovery

After the lawsuit is filed, the “discovery” process begins, which, in most cases, requires significant time and effort. During the “discovery” process, the parties demand and exchange information that is reasonably calculated to lead to admissible evidence in trial. More particularly, the “discovery” process may involve the following methods: (1) production requests; (2) interrogatories; (3) requests for admissions; and, (4) depositions. If disputes arise during the “discovery” process, the parties may move to compel the information with the court. If a motion to compel is filed, the court may or may not schedule a hearing to rule on the motion.

4. Summary Judgment

At the end of the “discovery” process, one or more of the parties may file a motion for summary judgment (in full or in part) seeking to resolve the case or issues in the case as a matter of law with the court. Essentially, the moving party or parties claim there are no material issues of fact in dispute and that the moving party is entitled to a judgment as a matter of law. Stated differently, the moving party contends that a particular result is required when applying the facts to the law. If granted by the court, the case or issues in the case are considered resolved unless otherwise appealed in a timely manner.

5. Trial

At some point, the parties may attempt to settle the case through alternative dispute resolution (“ADR”). Some common methods of ADR include mediation (court-ordered or voluntary) and arbitration (binding or non-binding). If an agreement is reached, there is no appeal. If no agreement is reached and no summary judgment granted by the court, the case proceeds to trial. Whether decided by judge or jury, a judgment will be entered based on the facts and law. Any of the parties may appeal the judgment, in full or in part, within a designated period of time (usually 30 days).